There is general agreement in recent literature that the transformative potential of the socio-economic rights in sections 26 and 27 of the South African Constitution has remained largely unexploited. The failure to realise socio-economic rights is attributable in part to a conservative legal culture which imposes limitations on the extent to which courts may intervene in matters concerning the redistribution of public resources.

The past few decades have witnessed the implementation of market-led neoliberal economic policies in many developing countries. In Africa, these policies took the form of structural adjustment policies (SAPs). Their implementation worsened socio-economic conditions and increased poverty on the continent (Stein, 2003).

On 11 and 12 September 2007, the case of Christian Roberts v Minister for Social Development and Others was heard in the Pretoria High Court. It concerns a constitutional challenge to section 10 of the Social Assistance Act of 2004 (the Act) and Regulation 2(1) (the Regulation) thereto, which set the age for accessing the old age grant at 60 for women and 65 for men. According to the applicants, the differentiation violates section 9(1) of the Constitution, which guarantees the right to equality, section 9(3), which prohibits unfair discrimination based on sex and age, and section 27(1)(c), which protects the right of access to social assistance.

Thirteen years after the promulgation of the Restitution of Land Rights Act in 1994, the Constitutional Court has clearly outlined the purposive manner in which the Constitution and restitution legislation should be interpreted to give real meaning to land rights law. The Court recently held unanimously that labour tenants who were dispossessed of land rights in 1969 are entitled to restitution. In so doing, the Court has in the case of Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd, CCT 69/06 (Popela community case) affirmed the rights of the Popela community and thousands of other labour tenant communities to claim back their rights under the Restitution Act.

In an earlier article in the ESR Review (Chenwi & Mbazira, 2006) we indicated that governments were about to decide on whether to proceed with the drafting of an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which will provide for a complaints procedure. We also set out the historical background and the debate about the need for the optional protocol.